(PC) Brooks v. North Kern State Prison

• Court: District Court, E.D. California
• Decided: March 18, 2024
• Docket: 1:23-cv-01751
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 DAVION LEMAR BROOKS, Case No. 1:23-cv-01751-BAM (PC) 8 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 9 v. (ECF No. 9) 10 NORTH KERN STATE PRISON, et al., 11 Defendants. 12 13 Plaintiff Davion Lemar Brooks (“Plaintiff”) is a state prisoner proceeding pro se and in 14 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint has 15 not yet been screened. 16 Currently before the Court is Plaintiff’s motion for appointment of counsel, filed March 17 14, 2024. (ECF No. 9.) Plaintiff requests that the Court help him get an attorney, because he 18 cannot afford one. Plaintiff states that once he has an attorney he can submit his case documents 19 and the evidence he has on the defendants. (Id.) 20 Plaintiff is informed that he does not have a constitutional right to appointed counsel in 21 this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other 22 grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to 23 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. 24 of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may 25 request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 26 1525. 27 Without a reasonable method of securing and compensating counsel, the Court will seek 28 volunteer counsel only in the most serious and exceptional cases. In determining whether 1 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 2 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 3 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 4 The Court has considered Plaintiff’s request, but does not find the required exceptional 5 circumstances. Even if it is assumed that Plaintiff has made serious allegations which, if proved, 6 would entitle him to relief, his case is not exceptional. This Court is faced with similar cases filed 7 almost daily by prisoners who must litigate their cases without the assistance of counsel. 8 Furthermore, at this stage in the proceedings, the Court cannot make a determination that 9 Plaintiff is likely to succeed on the merits. Plaintiff’s complaint has not yet been screened, and 10 therefore the Court cannot evaluate the likelihood of success on the merits. Finally, based on a 11 review of the record in this case, the Court does not find that Plaintiff cannot adequately articulate 12 his claims. 13 With respect to Plaintiff’s evidence, Plaintiff is informed that while exhibits are allowed at 14 the pleading stage if they are incorporated by reference, they are not necessary in the federal 15 system of notice pleading. Fed. R. Civ. P. 8(a); 10(c). The Court strongly suggests to Plaintiff 16 that they should not be submitted where (1) they serve only to confuse the record and burden the 17 Court, or (2) they are intended as future evidence. If this action reaches a juncture at which the 18 submission of evidence is appropriate and necessary (e.g., summary judgment or trial), Plaintiff 19 will have the opportunity at that time to submit his evidence. 20 Accordingly, Plaintiff’s motion to appoint counsel, (ECF No. 9), is HEREBY DENIED, 21 without prejudice. Plaintiff’s complaint will be screened in due course. 22 IT IS SO ORDERED. 23

24 Dated: March 15, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 25

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